Jones v. United States et al

Filing 149

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS' MOTION TO DISMISS, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND DENYING AS MOOT PLAINTIFF'S MOTIONS TO COMPEL: It is ORDERED that Defendants' 92 Motion to Dismiss, Motion for Summary Judgment is GRANTED; Plaintiff's 114 Motion for Summary Judgment is DENIED; Plaintiff's 132 , 141 Motions to Compel are DENIED AS MOOT; Magistrate Judge Trumble's 138 Report and Recommendation is A DOPTED; Plaintiff's Bivens claim is DISMISSED WITH PREJUDICE and Plaintiff's FTCA claim is DISMISSED WITHOUT PREJUDICE. This case is STRICKEN from the Court's active docket and the Clerk is DIRECTED to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 12/20/16. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL ANTHONY JONES,
Plaintiff,
v.

Civil Action No. 1:15cv50
(Judge Keeley)

UNITED STATES, et al.,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’
MOTION TO DISMISS, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, AND DENYING AS MOOT PLAINTIFF’S MOTIONS TO COMPEL
On March 20, 2015, the pro se plaintiff, Michael Anthony Jones
(“Jones”), filed a civil rights complaint against a number of
defendants concerning his medical care at U.S.P. Hazelton (dkt. no.
1-1). Jones’s brought his initial complaint against the defendants
in their individual capacities pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971) (dkt. no. 11). On
October 1, 2015, he filed an additional complaint in this same case
asserting a claim under the Federal Tort Claims Act (“FTCA”)
against the United States of America (dkt. no. 62).
The Court referred this matter to United States Magistrate
Judge Robert W. Trumble for initial screening and a Report and
Recommendation (“R&R”) in accord with LR PL P 2.1 On November 17,

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Jones subsequently filed three separate motions for a
preliminary injunction (dkt. nos. 3, 21, and 24). On October 20,
2015, Magistrate Judge Trumble entered a Report and Recommendation
specifically addressing these motions, which recommended that
Jones’s first motion be denied and the latter two motions be
dismissed as moot. The Court adopted the Report and Recommendation
on March 31, 2016 (dkt. no. 93).

JONES V. UNITED STATES, ET AL.

1:15CV50

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’
MOTION TO DISMISS, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, AND DENYING AS MOOT PLAINTIFF’S MOTIONS TO COMPEL
2016,

Magistrate

Judge

Trumble

issued

his

R&R,

in

which

he

concluded that Jones had failed to state a valid Bivens claim and
also had failed to file a screening certificate of merit pursuant
to West Virginia Code § 55–7B–6(c), a necessary requirement of his
FTCA claim (dkt. no. 138). The R&R recommended that the Court deny
Jones’s motion for summary judgment (dkt. no. 114), grant the
defendants’ motion to dismiss (dkt. no. 92), dismiss Jones’s Bivens
claim with prejudice, dismiss his FTCA claim without prejudice, and
dismiss as moot his motion to compel (dkt. no. 132). Id. at 20-21.
The R&R also specifically warned Jones that his failure to
object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on this issue. Id. at 21.
On December 5, 2016, Jones moved for an extension of time to file
any objections to the R&R (dkt. no. 140), which the Court granted
in part, giving Jones twenty-eight days to object, double the
statutorily required time (dkt. no. 142). Rather than utilizing
that time to write any objections, Jones continued to write motions
for additional extensions of time (dkt. nos. 144 and 147), which
the Court denied (dkt. nos. 145 and 148), as well as duplicative
motion to compel (dkt. no. 141). Despite multiple clear warnings to
Jones that no further extensions would be granted and that no late
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JONES V. UNITED STATES, ET AL.

1:15CV50

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’
MOTION TO DISMISS, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, AND DENYING AS MOOT PLAINTIFF’S MOTIONS TO COMPEL
filings would be considered, he failed to file any objections.2
After

reviewing

Magistrate

Judge

Trumble’s

thorough

and

detailed R&R, together with the record, the Court, finding no clear
error, agrees with the reasoning and conclusions contained therein.
Accordingly, the Court:
•

ADOPTS the R&R in its entirety (dkt. no. 138);

•

DENIES Jones’s motion for summary judgment (dkt. no. 114);

•

GRANTS the defendants’ motion to dismiss (dkt. no. 92);

•

ORDERS that Jones’s Bivens claim be DISMISSED WITH PREJUDICE;

•

ORDERS that Jones’s FTCA claim be DISMISSED WITHOUT PREJUDICE;

•

DENIES as MOOT Jones’s motions to compel (dkt. nos. 132 and
141); and

•

ORDERS that this case be stricken from the Court’s active
docket.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of

Court to enter a separate judgment order and to transmit copies of

2

The failure to object to the Report and Recommendation not
only waives the appellate rights in this matter, but also relieves
the Court of any obligation to conduct a de novo review of the
issue presented. See Thomas v. Arn, 474 U.S. 140, 148-53 (1985);
Wells v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).
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JONES V. UNITED STATES, ET AL.

1:15CV50

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’
MOTION TO DISMISS, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, AND DENYING AS MOOT PLAINTIFF’S MOTIONS TO COMPEL
this order to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
Dated: December 20, 2016.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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